The interpretation of article 9 of Directive 2011/95/EU: Evasion of Military Service in Case C-238/19 [EZ v. Germany]

Inês Tralhão Fernandes/ March 23, 2021/

Inês Tralhão Fernandes [1]

Abstract: The present post attempts to discuss Case C-238/19, relating to the interpretation and application of Articles 9 and 10 of Directive 2011/95/EU. Beginning with a brief analysis of the relevant facts and the findings of the Court, it aims to clarify the extension of the connection between Article 9(2)(e) and Article 12(2), concerning the refusal to perform military service due to potential breaches of International Humanitarian Law.

Case C-238/19[2], opposing EZ and the Federal Republic of Germany, pertains to the interpretation and application of Articles 9 and 10 of Directive 2011/95/EU [Qualification Directive or – hereafter – QD].[3]

EZ, a Syrian national, fled Syria in November 2014 to escape the mandatory military service, fearing he would have to participate in the Civil War.[4] He had been granted a deferment of his military service until February 2015 to complete his university studies.[5] However, pending his call to arms, EZ fled Syria in November 2014 and filed an asylum application in Germany.

In 2017, the Federal Office for Migration and Refugees denied his refugee status – granting him, instead, subsidiary protection[6], on the grounds that “he himself had not been subject to the persecution which induced him to leave”. According to this authority, the person concerned, having fled the danger of civil war, would not have to fear persecution if he returned to Syria, concluding there was no connection between the persecution EZ feared and the grounds for persecution which give rise to an entitlement to recognition as a refugee.[7] Action regarding this decision was brought before the Verwaltungsgericht Hannover (Administrative Court, Hanover, Germany), in which EZ argued that, as a result of having fled to avoid military service and of his asylum application, he would be exposed to a grave risk of persecution if he were to return to his country of origin.[8]  

The German court requested a preliminary ruling under Art. 267(2) TFEU. CJEU had to provide guidance, among else, on whether: a) Article 9(2)(e) protects persons who evade compulsory conscription by fleeing after the deferment of military service has expired (Question Two) and b) if the same article is to be interpreted as meaning that, for a conscript who does not know what his future field of operation will be, the performance of military service would, directly or indirectly, include “crimes or acts falling within the grounds for exclusion as set out in Article 12(2)” solely because the armed forces of his State of origin repeatedly and systematically commit such crimes – or acts – using conscripts (Question Three). The analysis of this decision will focus on Question Number Three and the Court’s clarifications on the scope of Article 9(2)(e). Certain other aspects related to this specific case, especially the inherent differences between refugee status and subsidiary protection for draft evaders, will be omitted for future research.

According to Article 2(d) of the Directive, a refugee is “a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country […]”. Consequently, in the case of EZ, what must be established is whether or not the fear of being prosecuted can be attributed to him for fleeing Syria with the intent to avoid military service.

Regarding the facts, Syria is engaged in civil war since 2011. There have been many reports of serious and systematic violations of International Humanitarian Law. Data shows that, indicatively, between 2011 and 2017, over 200.000 civilian deaths have occurred because of the war.[9] Given that the conflict has not reached an end, the recruitment of troops is still in progress, which means that personnel is always needed to fuel the conflict.

When becoming eligible for military service, a general expectation exists that conscripts must report to the military administration of their own accord. After six months, conscripts who do not report are routinely placed on a list of draft evaders. That list is made available to checkpoints and other government agencies. In times of war, draft evaders apprehended in this way are liable under Syrian law to be sanctioned severely.[10] The form of punishment does not follow any specifications, ranging from statutory prison sentences to (effective) execution, as such recruits are placed on hazardous assignments in front-line operations without any prior military training. Syrian Law does not recognise the right to conscientious objection to military service.

Given those mentioned above, it is not hard to predict EZ’s reasonable likelihood to face persecution if he returns to his country of origin. Simultaneously, the act of coming to another country, in this case, Germany, requesting refugee status, and admitting to fleeing Syria not to take part in the hostilities could per se aggravate the repercussions he will face. EZ will, undeniably, be prosecuted for draft evasion upon return.

As Article 9(2)(e) states, an act of persecution can take the form of “prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2)”.

Taking into consideration the conduct of hostilities during the Civil War, a person can, under Article 12(2)(a), be excluded from being attributed refugee status if there are enough reasons to believe that “he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”. In this sense, perpetrators of international crimes are liable under international criminal law and excluded from refugee status; the condemnation of their actions is so fundamental that it renders them, practically, stateless even if their victims never go after them.

It is of great importance to reflect on the consequences of such provision to the case under analysis. EZ is a national of the Syrian State, where massive atrocities constituting crimes against humanity and war crimes have occurred since the beginning of the Civil War, as deaths of civilians are prohibited by the Geneva Conventions[11] and deaths by torture[12] are prohibited by the Convention Against Torture, among several other treaties.[13] It is safe to say that, as someone young and healthy, the probability of EZ integrating the combating forces is very high, especially when considering the intensity of the conflict. Moreover, even if he returned to Syria, the probable repercussion would be his integration on the battlefield instead of serving as supporting staff. Given the particular circumstances of EZ, the probability of performing military service that includes the acts and crimes contained in Article 12 is very high.

As the CJEU established, it is in the national authorities’ competence to assess if the applicant would necessarily or, at least, very probably commit the crimes referred to in Article 12(2) of the Directive.[14][15] The determining authority shall consider all the “circumstances of the case, particularly those concerning the relevant facts as they relate to the country of origin at the time of taking a decision on the application and to the individual position and personal circumstances of the applicant, that the overall situation in question makes it credible that the alleged crimes would be committed”.[16] In this sense, servants of a unit performing logistical or technical support (indirect participation) are not excluded from this protection, as the Shepherd case confirms.[17] Consequently, in the context of the Syrian Civil War, even if only participating indirectly, EZ would most probably contribute to the perpetuation of war crimes, which would constitute a ground for the exclusion, as Article 12(2)(a) states.

The Court concludes its rationale on Question Three interpreting Article 9(2)(e) of Directive 2011/95 as inferring that the performance of military service involves committing, directly or indirectly, the crimes or acts mentioned in Article 12(2), regardless of the field of operation.

This interpretation is consistent with the scope and purpose of international criminal law, international humanitarian law and international human rights law in general, according to which a serious violation of their provisions entails individual international criminal responsibility. Many post-World War II conflicts have perpetuated the commission of war crimes[18], crimes against humanity[19] and crimes against peace.[20] Therefore, the condemnation of such acts is of utmost significance, as one cannot be expected to participate in military operations, which would render him/her liable under international criminal law.

By interpreting Articles 9(2)(e) and 12(2)(a) of the Qualification Directive in a preventive way, the CJEU underlines the need for protection to all those seeking asylum to avoid the commitment of international crimes.

In a regularly disputed topic, it seems that in cases similar to this, asylum seekers can expect a certain degree of safeguarding, based on the precedent that both cases (C‑238/19 and C‑472/13 [Shepherd]) set.


HOW TO CITE:
I. T. FERNANDES, The interpretation of article 9 of Directive 2011/95/EU: Evasion of Military Service in Case C-238/19 [EZ v. Germany], NOVA Refugee Clinic Blog, Março 2021, disponível em <https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=the-interpretation-of-article-9-of-directive-2011-95-eu-evasion-of-military-service-in-case-c-238-19-ez-v-germany>


[1] Inês Tralhão Fernandes is an undergraduate student at NOVA School of Law, pursuing a specialisation in International Humanitarian Law and Human Rights in Armed Conflicts from the European Institute of the University of Lisbon. She is a member of CEDIS, as a Project Assistant for Intra-Africa Pax Lusófona and CALESA.

[2] CJEU, Judgment of the Court (Sixth Chamber) of 19 november 2020, Case C‑238/19 EZ v. Bundesrepublik Deutschland, ECLI:EU:C:2020:945.

[3] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011L0095&from=EN%C2%B4.

[4] Paragraph 13 of the Judgment.

[5] Paragraph 14 of the Judgment.

[6] See accordingly: BAMF, Subsidiary protection, available at https://www.bamf.de/EN/Themen/AsylFluechtlingsschutz/AblaufAsylverfahrens/Schutzformen/SubisidiaerSchutz/subisidiaerschutz-node.html

[7] Paragraph 15 of the Judgement.

[8] Paragraph 16 of the Judgement.

[9] Statistica, Cumulative number of civilian deaths in Syria from 2011 to March 2017, by the party responsible, available at https://www.statista.com/statistics/697138/civilian-deaths-in-syria-by-party-responsible/.

[10] Paragraph 22 of the Opinion of the Advocate General.

[11] Articles 48, 50 and 51 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). In 1996, the ICJ specifically affirmed the importance of the rules of International Humanitarian Law, stating that “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”.

[12] Statistica, Number of people killed by torture in Syria from 2011 to March 2017, by the party responsible, available at https://www.statista.com/statistics/697235/torture-deaths-in-syria-by-party-responsible/.

[13] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987, in accordance with Article 27 (1), available at https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.

[14] Paragraph 34 of the Judgement

[15] Paragraph 40 of Judgement C‑472/13, Shepherd.

[16] Paragraph 35 of the Judgement.

[17] Paragraph 37 of Judgement C‑472/13, Shepherd.

[18] United Nations Security Council Resolution 827, adopted unanimously on 25 May 1993, establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), https://undocs.org/S/RES/827(1993).

[19] United Nations Security Council resolution 955, adopted on 8 November 1994, establishing the International Criminal Tribunal for Rwanda (ICTR), https://undocs.org/S/RES/955(1994).

[20] United Nations Security Council resolution 1315, adopted unanimously on 14 August 2000, establishing the Special Court for Sierra Leone to deal with violations of human rights, international law and war crimes in the country, https://undocs.org/S/RES/1315(2000).

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About Inês Tralhão Fernandes

Licenciada em Direito na NOVA School of Law (finalista). Tem colaborado de forma ativa em vários projetos do CEDIS – Centro de Investigação em Direito e Sociedade, apoiando na gestão das atividades.